Citation Nr: 1813044
Decision Date: 03/01/18 Archive Date: 03/13/18
DOCKET NO. 16-08 349 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUE
Entitlement to an increased rating for left lung calcified granuloma.
REPRESENTATION
Veteran represented by: James M. McElfresh, II, Agent
WITNESSES AT HEARING ON APPEAL
Veteran and Friend
ATTORNEY FOR THE BOARD
A. Snoparsky, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from January 1966 to February 1969.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. The case has been transferred and is now in the jurisdiction of the Salt Lake City, Utah RO.
The Veteran testified at a videoconference hearing in September 2017 before the undersigned Veterans Law Judge. A transcript has been associated with the file.
This case was previously before the Board in March 2017 and was remanded for further development.
The issue of entitlement to service connection for asthma is addressed in a separate decision.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012).
FINDING OF FACT
The Veteran's left lung calcified granuloma is not productive of any respiratory symptomatology.
CONCLUSION OF LAW
The criteria for a compensable rating for the Veteran's service-connected left lung calcified granuloma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.96, 4.97, Diagnostic Code (DC) 6820 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist and to Notify
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).
II. Legal Criteria
Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017).
Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2017).
VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).
In ascertaining the competency of lay evidence, the Courts have generally held that while a layperson is competent to testify to his symptoms, a layperson is not capable of opining on matters requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Bostain v. West, 11 Vet. App. 124 (1998), Charles v. Principi, 16 Vet. App. 370 (2002).
A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
III. Merits of the Claim
The Veteran has been assigned a noncompensable rating for left lung calcified granuloma under 38 C.F.R. § 4.97, DC 6820. DC 6820 pertains to benign neoplasms of any part of the respiratory system and provides for evaluation using an appropriate respiratory analogy.
The Veteran has continued to seek medical treatment for several medical conditions. The Veteran's progress notes contain mention of the status of his asthma. (See December 2012 note, January 2014, note, February 2014 note, November 2014 note). However, none of the Veteran's providers noted any symptoms associated with his left lung calcified granuloma.
The Veteran was afforded an examination for his respiratory conditions in October 2015. The examiner reviewed the Veteran's file and noted the Veteran's left upper lobe calcified granuloma. The examiner noted the Veteran had separately been diagnosed with asthma. The examiner performed pulmonary function testing and noted the Veteran's asthma was predominantly responsible for any present limitation in pulmonary function. The examiner noted the Veteran suffered from dyspnea solely due to his asthma. The examiner did not opine that any of the Veteran's respiratory symptoms were associated with his left lung calcified granuloma.
The Veteran had a videoconference hearing for his calcified granuloma in September 2017. The Veteran reported he was exhausted while performing daily activities, such as getting the mail from his mailbox and that his doctor provided him with a nebulizer, which helped his breathing a little, but he still suffered from shortness of breath. The Veteran also reported his breathing condition had worsened his sleep apnea and that he often awakened gasping for air in the middle of the night. The Veteran's friend, Mr. B., reported he lived in the Veteran's neighborhood and had witnessed the Veteran's shortness of breath, walking the twenty feet to the front door of Mr. B.'s shop. At this hearing, the Veteran submitted several articles relating to granulomas and their effects on the body. The Veteran also stated no one in his family had any respiratory conditions like his and that he has asthma, which he was told was COPD. The Veteran stated he had many medical issues, including shortness of breath and low energy. The Veteran's representative asserted the Veteran's rating should be increased because of all the residuals he experienced.
The Veteran was afforded another examination for his respiratory conditions in March 2017. The examiner reviewed the Veteran's file and noted the Veteran's diagnosis of asthma, but did not mention the Veteran's left lung calcified granuloma.
While the Board acknowledges the Veteran's symptoms, none of the symptoms mentioned, including COPD, sleep apnea, shortness of breath, and low energy, are symptoms that warrant a higher, compensable evaluation. 38 C.F.R. §4.97, DC 6820.
The Board also acknowledges the internet article submitted by the Veteran pertaining to asthmatic granulomatosis. While in some circumstances, medical treatise evidence can constitute competent medical evidence (See 38 C.F.R. § 3.159 (a)(1), treatise evidence must "not simply provide speculative generic statements not relevant to the [veteran's] claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, standing alone, must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); see also Mattern v. West, 12 Vet. App. 222, 227 (1999).
In this case, the article submitted by the Veteran provides only generic information. The article, while informative, does not contain any information regarding the Veteran's current level of symptomatology of his left lung calcified granuloma with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based on objective facts rather than on an unsubstantiated lay medical opinion. Therefore, the Board finds that the article submitted are of little probative value.
The Board also notes that in his February 2016 VA Form 9, the Veteran reported he had a cough associated with his calcified granuloma in a 2011 examination. However, the severity of the manifestations of the Veteran's calcified granuloma at that time are beyond the period currently under appellate review, which only extends to one year prior to the date of claim. See Francisco, 7 Vet. App. at 58; 38 C.F.R. § 3.400 (o)(2).
The Board has considered whether a compensable disability rating would be appropriate under alternative diagnostic code provisions. The evidence does not show that the Veteran had any other respiratory symptoms, such as pulmonary tuberculosis, pulmonary vascular disease, bacterial infection of the lung, interstitial lung disease, or mycotic lung disease. While the Veteran has asserted that his sleep apnea is a residual symptom of his calcified granuloma, sleep apnea is considered a separate condition and may not be combined with the Veteran's current diagnostic code. 38 C.F.R. §4.96. Therefore, a higher rating under another diagnostic code is not warranted.
The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).
ORDER
Entitlement to an increased rating for left lung calcified granuloma is denied.
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Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs